Between 2003 and 2015, Same-sex marriage went from being illegal nationwide to being legal in all 50 states. Understanding this social transformation is a fascinating and essential part of U.S. history. With this article you can explore the process of the legalization, the case Obergefell v Hodges and how the debate continues!
The Definition of Same-Sex Marriage
According to the definition same-sex marriage is the legal union of partners of the same sex into a spousal relationship. Same-sex marriage takes place between consenting adults of the same sex and/or gender identity.
A same-sex couple weds, Pexels, Photo by Olay Kobruseva, Free to Use
First State to Legalize Same-Sex Marriage
The first state to legalize same-sex marriage was Massachusetts. In the case of Goodridge v. The Department of Public Health, the Massachusetts Supreme Judicial Court ruled that it was a violation of the state’s constitution to exclude same-sex couples from marrying. This ruling was made on November 18, 2003, but took effect on May 17, 2004.
That same day, the first legally recognized same-sex marriage took place between Marcia Kadish and Tanya McCloskey in Cambridge, Massachusetts, along with 77 others throughout the state.
Same-Sex Marriage Law
The history of the debate regarding same-sex marriage, and laws banning or allowing it involves a lot of back and forth, representing the disparate beliefs that Americans have on this issue.
The significant legal debate around same-sex marriage began in the 1970s, shortly after the 1969 Stonewall Uprising.
1969 Stonewall Uprising
A group of protests led by gay members of the Greenwich Village, a New York community which were a reaction to discriminatory police raids.
In 2004 only one state, Massachusetts, had legalized same-sex marriage. By 2015, same-sex marriage was legal in all 50 states. This was the outcome of no less than 25 years of activism along with several prominent legal cases, which eventually culminated in the federal right for same-sex couples to marry. Below we will explore a number of key milestones in the history of same-sex marriage law.
Same Sex Marriage in the 1970s
In 1970, a couple named Richard Baker and James McConnell attempted to get married in Minnesota. Their application for a marriage license was denied. The decision was appealed but upheld by the State Supreme Court. The case was brought to the United States Supreme Court in 1972. The Supreme Court would not accept the case and limited the matter to state authority.
In the 1970s, starting with Maryland, several states including Virginia, Florida and California created laws that limited marriage to opposite-sex couples. Legal challenges around same-sex marriage fell by the wayside for years after that.
Same Sex Marriage in the 1980s
In 1989 in San Francisco, a city ordinance allowed same-sex couples to apply to become domestic partners. This allowed them a number of benefits, some of which were similar to those a married couple would receive such as the right to hospital visitation and time off from work for bereavement of the loss of a spouse. Washington D.C. followed suit a few years later.
Same Sex Marriage in the 1990s
In Hawaii in 1993, the important question of whether excluding same-sex couples from getting married was a breach of the Equal Protection Clause was asked. This was a landmark moment, the first time a state questioned laws around the illegality of same-sex marriages. The case didn’t advance. The Supreme Court of Hawaii referred the case to the lower First Circuit Court and it was stalled for three years.
In 1996, the Defense of Marriage Act (DOMA) was enacted by President Bill Clinton. It limited marriage to opposite-sex couples and took precedence over state laws. This was significant in that same-sex couples were denied federal benefits such as social security and the ability to file taxes jointly, regardless of if a particular state allowed same-sex marriage.
Same Sex Marriage in the 2000s
In the year 2000, Vermont began permitting civil unions for same-sex couples. While not a legal marriage, this enabled same-sex couples to receive benefits at the state level similar to married couples.
In 2004, Massachusetts became the first state to legalize gay marriage. That same year, President George W. Bush supported a constitutional amendment that would have prohibited same-sex marriage nationwide, but it was stopped by the Senate.
In 2004, ten states outlawed same-sex marriage. Additional states including Kansas and Texas followed suit. Other states legalized same-sex marriage including Connecticut, Iowa and New Hampshire.
In California, an attempt was made to pass a state law that would allow same-sex marriage in 2005 and again in 2007. Governer Schwarzenegger vetoed both bills. California’s Supreme Court reversed the state’s ban on gay marriage in 2008. That same year, Proposition 8 was voted in. This limited the right to marry, to opposite-sex couples.
Proposition 8
Proposition 8 was a 2008 ballot initiative in the state of California called the California Marriage Protection Act. It was a voter-approved statewide ban on same-sex marriage. It was challenged immediately in the California Supreme Court and ultimately ruled unconstitutional by a federal judge in 2010.
Same Sex Marriage in the 2010s
In 2012, Maryland, Maine and Washington legalized same-sex marriage. This was the first time laws allowing same-sex marriage were supported by voters. In 2013, same-sex marriage was legalized in California through the Hollingsworth v. Perry case.
U.S. v Windsor
In 2007, a same-sex couple from New York married in Ontario, Canada. Their marriage was legal in New York but not in the United States as a whole because of the Defense of Marriage Act. One of the spouses died and left her estate to her partner. Because the couple’s marriage was illegal at the federal level, the remaining spouse was required to pay estate taxes, something she would have been exempt from if she and her partner had been recognized as a married couple.
Edith Windsor, the surviving, spouse filed a lawsuit in 2010. In 2013, the Second U.S. Circuit Court of Appeals ruled in Windsor’s favor. It argued that the Defense of Marriage Act violated the equal protection clause and section 3 of the Defense of Marriage Act was overruled. From that point on, same-sex couples would receive federal benefits.
Same-Sex marriage ceremony, Pixoos, CC-BY-SA-4.0 Via Wikimedia Commons
National Legalization of Same-Sex Marriage: Obergefell v Hodges
Obergefell v Hodges was a case brought to the Supreme Court in 2015. Below we will explore this key Supreme Court case.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation…There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
- Supreme Court Justice Anthony Kennedy, 2015
Obergefell v Hodges was a case brought to the Supreme Court in 2015. James Obergefell filed suit because he wasn’t allowed to sign his partner's certificate of death. Consideration was made as to whether or not this was unconstitutional, a breach of the 14th Amendment’s Equal Protection and Due Process clauses. Supreme Court Justice Anthony Kennedy determined marriage to be a basic human right, bringing it under the scope of the Due Process Clause. It was further determined that denying same-sex couples the right to marry was also a refusal to grant them equal protection under the law as established by the Equal Protection Clause.
Due Process Clause
The 14th Amendment guarantees all United States citizens equal protection under the law. The Due Process and Equal Protection clauses are found within the 14th Amendment. The Due Process Clause guarantees all citizens due process of law prior to the government stripping an individual of life, liberty or property. The Equal Protection Clause guarantees that no individual or group will be refused protection by the law while other similar individuals or groups receive that protection. A simpler way of saying this is that the government must treat people equally.
Making same-sex marriage illegal was ruled unconstitutional and all states were required to allow same-sex marriage. The 14th Amendment to the United States Constitution mandates that states permit same-sex couples to marry. The Supreme Court decided 5 v 4 in favor of legalizing same-sex marriage in all 50 states. This landmark decision took place on June 26, 2015
Same-Sex Marriage Around the World
Vast differences exist globally when it comes to allowing same-sex marriage. A growing number of countries, currently over 30, recognize same-sex marriage. The Netherlands was the First Nation to make same-sex marriage legal in 2000.
As of 10 March 2022, Chile legalised same-sex marriage.
The celebration in front of the US Supreme Court, Matt Popvich, CC-Zero Via Wikimedia Commons
The Debate Continues
While same-sex marriage remains legal in all 50 states and many other countries around the world, there isn’t a consensus on its legality. Those who advocate for marriage equality believe that it represents the equal treatment of all citizens and provides a number of benefits and human rights to same-sex couples. Not allowing same-sex marriage would undermine the 14th amendment which specifies that citizens be treated equally under the Constitution’s laws.
Supporters of same-sex marriage point out that marriage has certain benefits that should not be denied to same-sex partners.
Examples of this include the ability to file taxes jointly, inheritance laws, participation in medical care, divorce laws, health insurance benefits, spousal privilege in court cases, visitation rights and benefits which impact children and families.
Several states and political leaders have appealed laws which permit same-sex marriage. It is estimated that approximately 60% of Americans support same-sex marriage but there is a strong contingency that is against it.
Same Sex Marriage - Key takeaways
Same-sex marriage is the legally recognized spousal union of same-sex partners.
In 1996, Bill Clinton signed the Defense of Marriage Act which limited marriage to traditional opposite-sex couples and denied couples marital rights at the state level.
In 2004, Massachusetts became the first state to make same-sex marriage legal.
On June 26, 2015, the Supreme Court ruling on Obergefell v Hodges led to same-sex marriage being legalized in all 50 states.
The debate on the legality of same-sex marriage continues in the United States.
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